How Noor Mukadam's case is a test for country's judiciary

ISLAMABAD:

Amid intense media spotlight, the proceedings of the Noor Mukadam murder case are likely to be a huge test for Pakistan’s judiciary as it looks to ensure justice is served. It has been over three months since that grisly murder took place and came to light, and in the time since, all eyes in the country have been fixed in place, waiting for the case’s ultimate outcome.

Under Additional Sessions Judge Ata Rabbani, the trial of the case finally began last month. However, it has emerged that the Islamabad police has submitted an incomplete challan, a detail that may prove crucial in the coming days and weeks. While it records that the police reached the scene of the crime in Islamabad’s F7/4 Sector on July 20, it provides no details on who tipped the police off on the killing of the 27-year-old victim. On the other hand, it narrates the initial statement of Noor Mukadam's father, former diplomat Shaukat Ali Mukadam. A key witness for the prosecution, Shaukat is set to record his statement in court very soon.

Details of the challan

According to the challan, Noor's parents were not at their residence on the afternoon of July 19. Noor’s father had been shopping for an animal for the ritual Eidul Azha sacrifice while her mother had been picking up dresses for religious festival from a tailor in Islamabad’s F10 locality. When Noor’s father returned home, the challan records that he found Noor to be not at home. Her mother reached home soon after and attempted to call Noor on her cellphone to find out where she was. The call failed to connect because Noor’s phone was switched off.

Beginning to worry, Noor’s parents contacted her friends. They were told she was going to Lahore with some of her friends and would return in the next couple of days.

A day later, on the afternoon of July 2020, Zahir Jaffer, who had an acquaintance with him, called Noor’s father to say that she was not with him, the challan records. Later that evening, at 10pm, Noor’s father received a call from the Kohsar Police Station and found out that his daughter had been murdered. Noor’s father Shaukat was first asked to come to the police station and later brought to Zahir’s residence where he discovered the brutal manner in which his daughter was murdered.

Upon confirming his daughter’s identity, Noor’s father demanded maximum punishment for Zahir, who was accused of the murder and arrested on the spot by the Inspector Abdul Sattar and ASI Muhammad Zubair. The challan notes that Zahir was in his ‘complete senses’ at the time. Noor’s decapitated body was discovered in the same room as him.

As the police gathered evidence, the challan notes that Crime Scene Incharge Muhammad Imran collected a knife, knuckleduster, 9mm handgun magazine and a laptop from the room Noor’s body was found in. Police took remand of Zahir for 12 days, collecting his fingerprints along with footage from CCTV cameras installed at his residence. According to the challan, the footage revealed the gruesome treatment Noor was subjected to before being murdered.

The challan states Zahir was medically examined on July 23. It is silent, however, on the mental condition of the principle accused. The medical examination also confirmed that the accused had sexually assaulted Noor prior to the murder.

The statement of the accused

In his statement on July 24, recorded in the challan, Zahir claims that Noor had turned him down for marriage on July 20. In the statement, he admits that Noor tried to escape his residence and that he had forcefully detained her. The accused, in his statement, said he ordered the guards at his residence to neither let anyone inside nor let Noor out. He told his parents the same via cellphone before killing Noor with a sharp knife.

Zahir in his statement claimed that his father had assured that ‘some people’ would come and shift Noor’s dead body away from the residence. He claims that his father told him to ‘not worry’ and that he would ‘deal with the matter’.

Some time later, five staff members of Therapy Works, an organisation that claims to provide mental health services, arrived at the scene. In the statement, Zahir said their arrival scared him, prompting him to attack them. A member of the Therapy Works team, Amjad Mehmood, was injured in the ensuing scuffle.

The police reached the scene soon after and apprehended Zahir. The accused, the challan reveals, recovered Noor’s phone for them from another room himself.

Attempt to obscure evidence

Investigation by police has suggested that Zahir’s parents called for the team from Therapy Works for ‘abetment’ and destruction of evidence. It also revealed that the parents did not inform the police of the crime in a timely manner. The call data record (CDR) obtained by the police reveals that the Zahir’s father Zakir Jaffer contacted him on July 19. The accused made several calls to his parents on the afternoon and evening of July 20 as well.

According to investigators, Noor may have been saved had Zahir’s father informed them about the development in time and suggests the parents were involved in abetting the crime. The police nominated Therapy Works staff member Amjad Mahmood among the accused on account of concealment of real cause of injury in the hospital.

Preventing Noor’s escape

Zahir’s guard Iftikhar and gardener Muhammad Jan are also nominated as accused on account of assisting and facilitating the accused in the murder.

According to digital video recorder (DVR) footage obtained by the police, Noor entered Zahir’s residence on July 18. Guard Iftikhar was manning the main gate but did not make any inquiries from her. The police established that the families of Noor and Zahir had interacted with each other in the past and the same was confirmed by the accused.

Regarding the role of Zahir’s guard and gardener, investigators stated that Noor, in an attempt to save herself, jumped from a window on July 20 at around 7:12 pm. She landed at a railing on the ground floor, suffering serious injuries to her abdomen. Limping with great difficulty, she managed to reach the main gate of the residence. Zahir, the principal accused, was not present at the time and had she managed to escape, she may have been alive today. The guard and gardener were allegedly present and witnessed the entire scene. Investigators said that instead of helping her, both voluntarily, mercilessly and callously bolted the main gate and did not allow her to escape.

The gardener also informed the principal accused, as vividly seen in the CCTV footage, of what had transpired. Subsequently, the principal accused shut her in the guard’s cabin at first and then dragged her to the main lobby of the house. These acts, of bolting the main gate, not helping the victim escape from wrongful confinement and informing the principal accused, bring the case of the guard and gardener within the remit of abetment, the challan states.

The investigation report also revealed that the principal accused Zahir was planning to leave the country through Qatar Airlines on July 19 but he could not travel.

The case in court

 

According to the first challan, a total 12 individuals have been implicated in Noor’s murder: principal accused Zahir Jaffer, his parents Zakir Jaffer and Ismat, and Muhammad Iftikhar, Jameel Ahmed, Muhammed Jan, Tahir Zahoor, Dalip Kumar, Wamiq Riaz, Abdul Haq and Amjad Mahmood.

The prosecution has submitted a list of 18 witnesses. Currently, the trial court is recording their statements. Their names are Shaukat Ali Mukadam, Jawad Jehan, Dr Shazia Zubair, Amir Shahzad, Muhammad Raza, Muhammad Zubair Mazhar, Constable Abid Lateef, Muhammad Imran, Muhammad Mudassir, Basharat Hussain, Aqsa Rani, Dost Muhammad, Sikandar Ali, Sikandar Hayat, Muhammad Riaz, Farasat Faheem Akhtar and Abdul Sattar.

In September, the Islamabad High Court directed the trial court to conclude the case within two months after framing the charge. Shah Khawar, the counsel for the complainants, expected that the statements of prosecution witnesses would be recorded within the next two weeks. He expressed satisfaction that the prosecution has made a very good case and expects the court to conclude the trial over the next couple of months.

Although Zahir’s parents have engaged counsels for themselves, no private lawyer has so far appeared on behalf of the principal accused, prompting the court to appoint a counsel to represent him.

The mental health factor

For now, the representatives of the accused have submitted no formal application to examine his mental health condition. Speaking to The Express Tribune, complainants’ counsel Shah Khawar said the stage for such an application had passed now, as it should have been submitted before the trial commenced.

Meanwhile, Advocate Salman Safdar, who has expertise in criminal law, said Zahir’s condition reflected behavioural issues which do not fall under the criminal law definitions for insanity.

Even so, one section of lawyers believes that the apex court can still examine the mental health of the accused after confirmation of their conviction, like in the case of Safia Bano. It is said that when a magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the magistrate shall inquire into the fact of such unsoundnesss, and shall cause such a person to be examined by the civil surgeon of the district or any other medical officer that the provincial government directs. Such a surgeon or officer shall thereupon be examined as a witness in the case. Pending such examination and inquiry, the magistrate may deal with the accused in accordance with the provisions of Section 466. And if the magistrate is of opinion that the accused is of unsound mind and consequently incapable of making defence, he shall record a finding to that effect and shall postpone further proceedings in the case.

The procedure in case a person sent for trial is deemed lunatic proceeds along the following steps. If any person appearing before a court for trial is of unsound mind and consequently incapable of making his defence, the court shall, in the first instance, try the fact of such unsoundness and incapacity. If the court is satisfied of the fact, it shall record a finding to that effect and postpone further proceedings. The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court.

SC landmark ruling on insanity

In February, the apex court in its judgment directed that restrictive terms like ‘unsoundness of mind’ be replaced with internationally recognised definitions of mental illness and mental disorder. It opined that limited definition of the terms ‘mental disorder’ or ‘mental illness’ should be avoided, and the provincial legislatures may, in order to better appreciate the evolving nature of medical science, appropriately amend the relevant provisions of the mental health laws to cater to medically recognised mental and behavioral disorders as notified by World Health Organisation through its latest edition of International Classification of Disease.

The court also recognised that outdated terms such as ‘lunatic’ and ‘insane’ in the Code of Criminal Procedure, Prison Rules and the Pakistan Penal Code be replaced with terms that are more inclusive and sensitive.

The court held that where the accused raises any specific plea, permissible under the law, including a plea under section 84 of the Pakistan Penal Code, the onus to prove such a plea is on the accused. However, while proving such a plea, the accused may benefit from any material, oral or documentary, produced or relied upon by the prosecution.

Regarding the plea of the accused before or during trial, the court made the following observations. Whenever the trial court is put to notice, either by express claim made on behalf of the accused or through court’s own observations, regarding the issue of incapability of an accused to understand the proceedings of trial and to make his or her defence, this shall be taken seriously while keeping in mind the importance of procedural fairness and due process guaranteed under the Constitution and the law. To this end, the accused can lead the evidence and adduce evidence in his/her claim. Moreover the head of the Medical Board shall appear as a witness in court can be cross-examined by both the prosecution and the defence.

While forming a prima facie tentative opinion, the court may give due consideration to its own observations in relation to the conduct and demeanour of an accused person. Failure of the parties to raise such a claim, during trial, does not debar the Court from forming an opinion on its own regarding the capability of an accused person to face the proceedings of trial. A prima facie tentative opinion cannot be formed by the court only on the basis of such questions posed to the accused. The court is required to objectively consider all the material available before it, including the material placed/relied upon by the prosecution.

Once the court has formed a prima facie tentative opinion that the accused may be incapable of understanding the proceedings of trial or make his/her defence, it becomes obligatory upon the court to conduct an inquiry to decide the issue of incapacity of the accused to face trial due to mental illness. The court must have the accused examined by a Medical Board, to be notified by the Provincial Government, that consists of qualified medical experts in the field of mental health. Such experts shall examine the accused and opine on whether the accused is capable or otherwise to understand the proceedings of trial and make his/her defence. The medical report or opinion must be detailed and structured with specific reference to psychopathology (if any) in the mental functions of consciousness, intellect, thinking, mood, emotions, perceptions, cognition, judgment and insight.

The SC judgment has set precedent for the rights and protections afforded to mentally ill prisoners at arrest, investigation, trial, sentencing and clemency stage. The court directed the Federal Government and all the Provincial Governments to immediately make necessary amendments in the relevant laws and the rules in the light of observations given in this judgment, and that the Prison Rules should be appropriately amended so as to bring the jail manuals of all the Provinces in harmony. The Supreme Court has also directed the federal government and all the provincial governments to immediately establish and create high security forensic mental health facilities in the teaching and training institutions of mental health for assessment, treatment and rehabilitation of under trial prisoners and convicts who have developed mental ailments during their incarceration. This is the first time that a direction has ever been passed to set up forensic facilities by a superior court.

Interestingly, despite this judgment, Zahir Jaffer’s family did not raise issue regarding mental health of principal accused.

Media coverage and court proceedings

Noor Mukadam’s case has also triggered debate on whether media coverage has made the judges over-conscious by not granting bail to the co-accused in this matter. Even superior courts are proactive in this matter. Firstly, when parents approached for bail, Islamabad High Court rejected their bail with direction to lower court to conclude trial within two months.

Interestingly, a division bench apex court passed unique order in bail matters of parents. After arguing his case at length, the counsel for the petitioner Zakir Jaffer did not press this petition for bail after arrest. Therefore his petition was dismissed as not pressed.

The counsel for petitioner has urged the SC that the time period of eight weeks specified in IHC September 23 order “to conclude the trial expeditiously preferably within eight weeks from the framing of charge” deprives the petitioner of a fair opportunity to lead his defence. However, the bench did not agree with that submission which is conjectural and without reference to facts. "It goes without saying that the petitioners have a right of presenting their defence before the learned trial court and in this respect, the learned trial court shall consider and decide their pleas in accordance with law as envisaged in Article 10A of the Constitution," says the SC order passed on October 18.

The bench granted bail to the petitioner Ismat Zakir Jaffer subject to her name being retained on the ECL and her furnishing bail bonds in the sum of Rs1 million with one surety in the like amount to the satisfaction of the trial court concerned. The court also observed that this concession of bail may be withdrawn if the petitioner (Zahir’s mother) misuses it in any manner, including causing delay in the expeditious conclusion of the trial or influencing the prosecution witnesses.

Senior lawyers believe that there was no need to give last observation in this order. They believe that it reflects that the court is being influenced from intensive coverage of case on digital media. Even one of the defence counsels wonders how parents have been pronounced guilty before trial due to continuous media coverage. He also states that the police investigation is silent on the mental condition of principal accused.